Lawsuit Demands Recount Option

Screen Votes Can Be Flawed, Coalition Says

TALLAHASSEE — A coalition of civil rights and voting reform groups on Wednesday launched an appeal of a state rule that prohibits manual recounts on touch-screen voting machines.

"Failure to allow a recount covers up malfunctioning machines and covers up when there is malicious tampering involved," said Alma Gonzalez, a Tallahassee attorney representing the Voter Protection Coalition Round Table.

Touch-screen voting is used in 15 Florida counties -- including Miami-Dade, Broward and Palm Beach -- and by more than half of Florida's 9.5 million registered voters. The voting technology was adopted after the Legislature banned the use of punch-card ballots, which were blamed for the 2000 presidential election fiasco.

Issued in February, as counties were preparing for the presidential preference primary, the state Division of Elections rule prohibits manual recounts on computerized voting machines in cases of close elections -- even though state law requires a manual recount of "over votes" and "under votes" when an election margin is less than one-quarter of 1 percent of the votes cast.

State officials argue that electronic balloting will not allow an over vote, in which a voter selects more than one candidate, and there is no way to determine a voter's intent in an under vote, in which no candidate is selected.

"It's a voter's prerogative not to vote in a particular race," said Nicole de Lara, a spokeswoman for Secretary of State Glenda Hood, the state's top election official. "It's hard to get into the mind of the voters."

But recount supporters said an under vote could well be the result of a hardware or software failure that, if fixed, could reveal an actual vote.

The lawsuit was filed in Florida's Division of Administrative Hearings on behalf of the American Civil Liberties Union of Florida, Common Cause Florida, Southwest Voter Registration Education Project, Florida Voters League and the Florida state chapter of the Southern Christian Leadership Conference.

"[The rule] certainly makes you start thinking seriously about conspiracy theories," said Ben Wilcox, director of Common Cause Florida, a government watchdog group. "It feeds the cynicism out there that the election will be stolen again. It sends the wrong message."

So far the closest election on the ATM-style machines was in the Jan. 6 state House District 91 race, where Ellyn Bogdanoff won a 12-vote victory over Oliver Parker, then mayor of Lauderdale-by-the-Sea. It was the only race on the ballot.

Parker's request for a recount was denied, even though there were 137 instances in which a ballot was cast but the machine did not register a vote for a candidate.

"No one can argue that touch-screen voting machines are going to work 100 percent of the time," said Howard Simon, executive director of the ACLU of Florida. "That's precisely why we must have a mechanism in place to recount all of the votes in close elections."

U.S. Rep. Robert Wexler, D-Boca Raton, has filed suits in federal and state court seeking a paper trail for all votes. The federal challenge was dismissed on May 24, after U.S. District Judge James Cohn said it would interfere with Wexler's state court battle.

Linda Kleindienst can be reached at lkleindienst@ sun-sentinel.com or 850-224-6214.